About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 537
|
|
Pan Africanist Congress of Azania v Moloto (46162/2019) [2019] ZAGPPHC 537 (12 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
NO
Case No. 46162/2019
12/7/2019
In
the matter between:
THE
PAN AFRICANIST CONGRESS OF
APPLICANT
AZANIA
And
MOLOTO,
NARIUS
RESPONDENT
JUDGMENT
MILLAR. AJ
1.
This is an application in which the
applicant applies to set aside a decision by the respondent. its
current President, to suspend
the applicant's constitution and office
bearers and to administer the applicant by decree. The respondent
avers an emergency entitling
him to have acted as he did. The
applicant disputes any emergency.
2.
On 9 June 2019, the respondent addressed
a letter to all structures of the applicant setting out what he
asserted was the state
of affairs within the applicant and concluded
his report by stating:
"/
therefore and hereby
invoke clause 14.2 of the Disciplinary Code of the Constitution, and
to suspend the Constitution to the extent
that it would be necessary
to ensure that
a
National Congress is timeously an(sic)
properly convened and that the processes and compliance requirements
leading up to the National
Congress are adhered to ensure that the
said meeting of members and properly mandated the delegates renders
a
legitimate result to ensure the future of our organization and the
fulfilment of its objectives."
3.
Clause 14.2 of the Disciplinary Code of
the Constitution provides:
"The President shall have
emergency powers, which he may delegate, to suspend the entire
constitution of the PAC so as to ensure
that the movement by decree,
and is answerable for his actions to the National Conference or
National Congress."
4.
The word "ensure" in the
second line of the clause seems to have been an error. The clause as
presently worded makes no
sense. The parties are common cause on the
papers that the clause properly construed would have the word
"ensure" substituted
or replaced with the word
"administer". A reading of the clause with this word in
substitution for "ensure"
would certainly be consistent
with the conduct of the respondent after the issue of the letter and
also with the applicants understanding
of the effect of the
invocation of the clause.
5.
On 10 June 2019, the respondent then
issued a decree in terms of clause 14.2 in terms whereof he inter
alia summarily removed all
members of the National Executive Council
("NEC") who had previously been elected to those positions
and appointed his
own office bearers. He also decreed that the
National Conference which was to take place from 29 to 31 August 2019
in Bloemfontein
would now take place on 24 August 2019 in Marble
Hall.
6.
It is the invocation of clause 14.2 and
the subsequent decrees that caused the applicant to approach this
court on an urgent basis
for an order to set aside the invocation of
clause 14.2 by the respondent and for consequential relief.
7.
Central to the invocation of the clause
was the existence of an "emergency" justifying its
invocation. This also goes
to whether or not the present application
is urgent or not.
8.
An "emergency" is
"A
situation, esp. of danger or conflict, that arises unexpectedly and
requires urgent action"
and
"The fact of happening or
occurring suddenly or unexpected/y'"
[1]
9.
Two issues arise for
determination - firstly what then was the emergency that caused the
respondent to invoke clause 14.2 and secondly
was he entitled to do
so?
10.
On 8 March 2019, pursuant to litigation
between various members of the applicant, an order was granted by
consent in terms whereof
the agreed leadership of the applicant was
recorded. It suffices to state for purposes of the present
application that the respondent
was acknowledged to be the
applicant's president and the deponent to the founding affidavit
before me as its secretary general.
The order also recorded that a
national congress with the aim of electing an NEC would take place on
or before 31 August 2019.
11.
The NEC met on 18 May 2019. All the
members who had been agreed as set out in the court order of 8 March
2019 were present. The
resolutions taken at that meeting were
inter
alia
that:
"a.
The date of the Congress
shall be 31 August 2019.
b.
The venue of the Congress
will be in Bloemfontein.
c.
Secretary general will
issue
a
circular
of the congress in compliance with the Court Order and the PAC
Constitution of 2000.
d.
All other administrative
requirements of the Congress with(sic) be attended by the Secretary
General, including logistics."
12.
On 23 May 2019, a letter from the office
of the Secretary General and addressed to all branches and structures
and component structures
was dispatched. The letter contained
notification of the holding of the National Congress as well as
reference to the relevant
provisions of the 2000 Constitution. It
also pertinently stated that the agenda for the conference was
predicated on paragraph
7 of the court order of 8 March 2019:
"The
PAC shall hold
a
national congress
on or before 31st August 2019 with the primary aim of electing the
National Executive Committee. The National
Congress shall be held
subject to the provisions of the PAC Constitution of 2000."
13.
There was in addition attached to the
letter a document headed "Road Map toward PAC Elective Congress
to be Held 29
th
to 31
st
August 2019 in Bloemfontein". This document set out a specific
time line and 13 separate steps towards the National Congress.
It
also specified who would be responsible for each of the steps.
14.
On 26 May 2019 an internal 8-page
memorandum prepared by the National Chairperson, Mr. Phillip Dlamini
was circulated in which he
took issue with the contents of the letter
of 23 May 2019 and its annexure and a plethora of other matters. On 5
June 2019 the
Secretary General responded in writing a 4-page reply
in which he addressed the substance of each of the issues raised.
15.
Nothing further transpired until the
respondent in his letter of 9 June 2019 notified all structures of
the applicant that he was
invoking clause 14.2. The clause was
invoked
inter alia
because:
"7.
In terms of clause 3.1 of the Constitution it is the duty of the
NEC to "organize, supervise and co-ordinate the activities
of
the party".
8.
In order to do so and in order to
ensure that not only the parties to the litigation, but also ordinary
members of the organization
who (are) entitled to the adherence to
the court order and Constitution, the provisions of the Constitution
must be observed and
complied with.
9.
It follows than an NEC meeting
should be properly convened to afford the members of the NEC to
deliberate and conclude on a date
for the National Congress, to
determine a proper time line that would ensure that the other
requirements of the Constitution are
properly adhered to, and to iron
out any possible deficiencies that may bring the credibility and
legitimacy of the National Congress
into disrepute. The purpose of
the said meeting would also be to delegate certain of the
abovementioned tasks, for which the NEC
is responsible, to specific
office bearers to ensure that decisions are properly executed.
10.
To date this compulsory first
step was not possible due to the chronological sequence of events in
11 below that followed the court
date of the settlement agreement and
the court order."
And
"11.8 The
notice issued by the Secretary General has not been discussed or
issued by the NEC and does not have
the required agenda
as
provided for in
the Constitution. It was not sent (to) the branches of the party of
the different wards of the country. It was sent
only to
a
few people and it
was further posted on social media platforms. I humbly submit that
not all members belong to social media platforms."
16.
What then was the emergency? It is clear
that the letter of 9 June 2019 read as a whole but in particular the
passages quoted above
that the emergency perceived by the respondent
arose firstly from a belief that there had been no NEC meeting held
and also that
the Secretary General had no mandate to give notice of
the forthcoming National Congress or authority to attend to the
administrative
matters.
17.
The NEC meeting held on 18 May 2019 was
completely ignored by the respondent, even though he had attended it,
and he proceeded on
the basis that it had not taken place and that
none of the resolutions passed at that meeting had any force or
effect. In reality
the NEC meeting had taken place and valid
resolutions had been passed. The Secretary General h.ad acted in
accordance with those
resolutions and the mandate they gave him and
proceeded to give notice for and arrange the National Congress. In
terms of those
resolutions, if the respondent had any cause for
concern the appropriate course of action for him to follow was in the
first instance
to engage with the Secretary General, in much the same
way as the National Chairperson had done.
18.
In terms of clause 5.7 of the
applicant's Constitution, notice and an agenda of an annual
conference has to be given to the component
structures and organs of
the applicant at least 8 weeks beforehand. The sending of the notice
of 23 May 2019 for the National Congress
to be held on 31 August 2019
was sent out 14 clear weeks before. Furthermore, in terms of clause
5.8, members can call for the
inclusion of specific items on the
agenda of such conference by giving the Secretary General notice not
less than 6 weeks
beforehand. The 8- and 6-week periods
respectively would have expired at the end of the 2
nd
and 4
th
weeks of July 2019 respectively - a full 6 weeks after the notice of
23 May 2019 was sent out.
19.
Having considered the time periods
available to the respondent, there was no pressing need to have taken
the steps that he did by
summarily invoking clause 14 .2 of the
Constitution. The reasons proffered by him for doing so - which were
technical in nature,
could have been remedied simply by engaging with
the Secretary General. The main reason however was a disregard for
the fact that
the NEC had met on 18 May 2019 and had passed valid
resolutions - which included the delegation of authority to the
Secretary General
to make the necessary arrangements and take the
steps required to ensure that the National Congress took place on the
agreed date
of 31 August 2019.
20.
Was the respondent's dissatisfaction
with the NEC meeting of 18 May 2019 and the subsequent actions of the
Secretary General indicative
of an emergency? It was argued on behalf
of the respondent that clause 14.2 of the Constitution required only
the subjective view
of the respondent that there was an emergency for
him to validly invoke the provisions of clause 14.2.
21.
I was referred to the judgment in the
case of Pan Africanist Congress of Azania v Ka Plaatjie and Others
[2]
in which it was stated:
"[26] It
was contended on behalf of the respondent party that the president
acted unconstitutionally in suspending
the constitution of the PAC.
The contention failed to impress. Clause 14.2 of the Disciplinary
Code empowers the president to suspend
the entire constitution if
there is a crisis. It is not open to any member to argue that the
president acted unlawfully in suspending
the constitution because
there was no crisis. Whether the PAC faces
a
crisis or not, is
not open for any democratic debate. The enquiry is not whether
a
reasonably
informed member of the PAC would, in given circumstances, have
objectively thought that the PAC was in
a
political crisis
or not. On the contrary, the enquiry is whether the president
subjectively believed that the PAC was in
a
crisis regard
being had to the prevailing circumstances. It is
a
prerogative which
is exclusively entrusted to the president. It resides squarely within
the subjective province of his own mind.
It follows, therefore, that
even if the president's reading and assessment of the situation is
shown to be objectively wrong, it
cannot, for that reasons, be
challenged.
[27]
It is a matter of democratic centralisation of emergency powers in
the president. He wields unquestionable
powers in terms of clause
14.1. On 22 September 2007 he was of the opinion that the crossing of
the floor by 213 of his party's
members of parliament, coupled with
the immediate breakaway from his party, together boiled down to real
crisis. Apparently there
had never been such
a
rebellion in the
history of the party
as
a
liberation
movement or
as a
registered
political party. During the state of emergency the president was
empowered to rule the movement alone by decree
-
clause 14.2.
Implicitly he could lawfully dissolve any structure including the
national executive committee. For his actions during
the crisis he
was obliged to answer only to the national conference or congress.
"
22.
If
this is the test to be applied then irrespective of the objective
circumstances, the respondent could at any time invoke the
provisions
of clause 14.2.
23.
The
Constitution of the applicant read as a whole makes it plain that it
is an organization founded upon a membership. Furthermore,
it
recognizes that the
"national
conference shall be the supreme organ of the organization."
The
applicant's Constitution does not recognize a situation where the
applicant can as a matter of course be administered by decree.
The
circumstances under which this may occur must constitute an
emergency.
24.
The invocation of clause 14.2 is an
extraordinary remedy. Its invocation has the effect of suspending the
authority of all elected
decision makers and strikes at the core of
the aims and objectives of the applicant - inter alia to
"fight
for the overthrow of all forms of domination"
25.
It is well established in our law and
the Constitutional Court has held in Albutt v Centre For the Study of
Violence and Reconciliation
[3]
that where a:
"decision is challenged on
the grounds of rationality; courts are obliged to examine the means
selected to determine whether
they are rationally related to the
objective sought to be achieved."
26.
This principle has been applied where
the power exercised is a public power, but I can see no reason why it
is not also applicable
in the present matter. The applicant is a
voluntary body and its members are entitled to hold their elected
office bearers within
that voluntary body to the same standard. It is
inimical to the very concept of a voluntary association with a
constitution and
elected office bearers, that one member may on an
entirely subjective basis and without regard to whether a decision
made is in
any way rationally connected to the reason for the
decision, make such a decision. For these reasons I consider that the
appropriate
test for considering whether clause 14.2 could be invoked
is an objective one based on the principle of rationality.
27.
A consideration of events from 18 May
2019 up to 9 June 2019 set out above makes it clear that there was
indeed no "emergency"
and no basis for invoking clause
14.2. The decisions taken by the NEC on 18 May 2019 were validly
taken and stand. The decisions
taken by the respondent from the time
of the invocation of clause 14.2 where these are inconsistent with
those resolutions are
set aside. Those decisions that are consistent
will stand.
28.
In the circumstances I make the
following order:
28.1
The respondent's unilateral invocation
of clause 14.2 of the PAC disciplinary code, adopted as part of the
amended Ga-Maltala Constitution
of 2000 is hereby set aside;
28.2
All decrees issued by the respondent
from 9 June 2019 to date of this order, where such decrees are
inconsistent with or contradictory
of the resolutions of the NEC
taken on 18 May 2019 are set aside;
28.3
There is no order as
to costs.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
9 JULY 2019
JUDGMENT
DELIVERED ON:
12 JULY2019
COUNSEL
FOR THE APPLICANT: ADV. D
MTSHWELE
INSTRUCTED
BY:
MB TSHABANGU ATTORNEYS
REFERENCE:
MR. TSHABANGU
COUNSEL
FOR THE RESPONDENT: ADV. S KROEZE
INSTRUCTED
BY:
MOOLMAN & PIENAAR INC
REFERENCE:
MR. J KRIJT
[1]
The Shorted Oxford English Dictionary, Oxford University Press,
Fifth Edition,2002, Vol. 1 page 814
[2]
(5173/2 008)
[2008] ZAFSHC 73
(9 October 2008) at paragraphs 26 and
27
[3]
2010 (3) SA 293
(CC) at paragraph 51; a case where the Court
considered the exercise of authority by the President of the
Republic. See also
Minister of Defence and Military Veterans v Motau
and Others
2014 (5) SA 69
(CC); Democratic Alliance v President of
the Republic of South Africa and Others
2013 (1) SA 248
(CC)